Citation Nr: 0026295
Decision Date: 09/29/00 Archive Date: 10/04/00
DOCKET NO. 94-05 034 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
J. M. Daley, Counsel
INTRODUCTION
The veteran had active service from March 1942 to October
1945.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from a December 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO),
located in Lincoln, Nebraska. The Board, in a decision dated
in October 1998, denied service connection for PTSD,
tinnitus, otomycosis, narcolepsy and dermatitis. The veteran
appealed to the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court"). The
Court, in an Order dated January 21, 2000, granted a joint
motion to dismiss the appeal with respect to otomycosis,
narcolepsy and dermatitis, and to vacate the portion of the
Board's October 30, 1998 decision that denied entitlement to
service connection for PTSD and tinnitus, remanding such
matters for further action consistent with the concerns
raised by the parties.
FINDINGS OF FACT
1. The record contains competent evidence attributing the
veteran's credible account of a continuity of bilateral
ringing in the ears since in-service noise exposure to a
diagnosis of tinnitus.
2. The record contains a diagnosis of PTSD that has been
related by a competent professional to in-service stressors
as reported by the veteran.
CONCLUSIONS OF LAW
1. The veteran's claim of entitlement to service connection
for tinnitus is well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The veteran's claim of entitlement to service connection
for PTSD is well grounded. 38 U.S.C.A. § 5107(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Pertinent Laws and Regulations
Generally, in order to establish service connection for a
claimed disability the facts must demonstrate that a disease
or injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303 (1999). Service connection may also be
granted for a disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service.
38 C.F.R. § 3.303(d).
The threshold question to be answered with respect to claims
of service connection is whether there is evidence that the
claim is well grounded. "[A] person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober,
10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542,
545 (1996). A well-grounded claim is "a plausible claim,
one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of [section
5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990).
In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the
United States Court of Appeals for Veterans Claims (known as
the United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court") held that a claim must be
accompanied by supportive evidence and that such evidence
"must 'justify a belief by a fair and impartial individual'
that the claim is plausible."
For a claim to be well grounded, there must be (1) a medical
diagnosis of a current disability; (2) medical or, in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service injury or disease and the
current disability. See Anderson, supra; Caluza v. Brown, 7
Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir.
1996) (table).
Under the provisions for direct service connection for PTSD,
60 Fed. Reg. 32807-32808 (1999) (codified at 38 C.F.R. §
3.304(f)), service connection for PTSD requires medical
evidence diagnosing the condition in accordance with
38 C.F.R. § 4.125 (diagnosis of mental disorder); a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to this combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. See Moreau v.
Brown, 9 Vet. App. 389, 394 (1996). The regulation was
changed in June 1999 to conform to the Court's determination
in Cohen v. Brown, 10 Vet. App. 128 (1997).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence. See Layno v. Brown, 6 Vet.
App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). The Court has elaborated that the second and third
Caluza elements may also be satisfied under
38 C.F.R. § 3.303(b), by the submission of (a) evidence that
a condition was "noted" during service or during an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and the post-service symptomatology.
Savage v. Gober, 10 Vet. App. at 495-97. However, even under
this regulation, medical evidence is required to demonstrate
a relationship between a present disability and the
continuity of symptomatology if the condition is not one
where a lay person's observations would be competent. See
Niemiec v. West, No. 96-920 (U.S. Vet. App. Dec. 1, 1999)
(per curiam) (the Court found the veteran's claim not well
grounded where there was no medical evidence of a chronic
psychiatric disorder manifested in service, and where there
was no medical evidence linking a diagnosed post-service
psychiatric disorder to service); see also Clyburn v. West,
12 Vet. App. 296, 302 (1999); Wade v. West, 11 Vet. App. 302
(1998); Boyer v. West, 11 Vet. App. 477 (1998), aff'd on
reh'g, 12 Vet. App. 142 (1999).
For the purposes of determining whether a claim is well
grounded, the Board must presume the truthfulness of the
evidence, "except when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion." King v.
Brown, 5 Vet. App. 19, 21 (1993). The standard for
establishing a well-grounded claim has been described as very
low. Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000).
Analysis
Tinnitus
In October 1992, the RO received a statement in which the
veteran claimed entitlement to service connection for hearing
loss; he stated he had been an anti-aircraft gunner in
service, constantly exposed to the concussion and blast of
guns.
In June 1993, the veteran presented for VA examinations. A
report of audio-ear disease examination notes a diagnosis of
deafness by history; the examiner indicated it was "possible
that [the veteran's] difficulty with his ears started with
him serving in anti aircraft artillery unit." In connection
with ear, nose and throat evaluation, the veteran reported
in-service exposure to gunfire and complained of progressive
hearing loss thereafter. He also complained of bilateral
nonpulsatile tinnitus, waxing and waning in frequency. The
diagnosis was sensorineural hearing loss with reduced
auditory discrimination by history, most likely secondary to
acoustic trauma. The veteran is now service connected for
bilateral hearing loss.
In August 1994, the RO received a statement from the veteran
in conjunction with his personal hearing, indicating the
presence of constant ringing in his ears since service.
During the hearing the veteran testified that he was exposed
to gunfire during service and that after such exposure his
ears would hurt and ring.
The veteran is currently diagnosed with tinnitus, meeting one
prong of well groundedness under Caluza, supra. Moreover,
the veteran has provided a credible history of continuous ear
problems since service. He has testified as to in-service
noise exposure, followed by problems such as pain or ringing
in his ears. The veteran has also reported constant ringing
in his ears since service. Such account is deemed credible
for the purpose of determining well groundedness.
Furthermore, ringing in the ears is a condition given to lay
observation and, the diagnosis of tinnitus has been
attributed to the veteran's lay account of continuous ringing
since service. Thus, the record contains evidence of a nexus
between the present disability, tinnitus, and the post-
service symptomatology of ringing in the ears, sufficient to
well ground the veteran's claim. See Savage v. Gober, supra.
PTSD
The veteran served during World War II in Battery D, 811th
AAA Auto Weapons Battalion. His military occupational
specialty was anti-aircraft gunner. He is credited with
service in the Pacific Theater from June 1942 to October
1945.
In a personal statement received in April 1993, the veteran
noted that while stationed with his gun battery in the
Gilbert Islands he became very nervous and that such
nervousness continued upon his return to the United States
and in civilian life. He indicated that there were times he
felt that he was "an inward time bomb about to explode."
In a statement received in June 1993, the veteran indicated
he had served on Gilbert Island soon after it was secured as
a Naval Air Defense base. He stated that they had no shade,
only tents; that the heat was tremendous; that the water was
unfit to drink; and that the stench of the island was
sickening and nerve racking. The veteran stated that he
himself was not in combat but that his unit had been in a
combat zone.
In July 1993, the veteran underwent mental status examination
by a private psychiatrist upon referral by VA. The veteran
stated he was stationed in the Pacific during the war and
"saw some action during that period of time." He
complained of severe anxiety, hyperalertness, hypervigilance,
and some constriction of affect, as well as sleeping problems
and what sounded like panic episodes. The examiner opined
that the veteran appeared to have had PTSD that was more
active for a number of years post discharge but although
still present, was now much diminished.
In August 1994, the RO received a statement from the veteran
in conjunction with his personal hearing. The veteran
reported stress from his hearing difficulty and complained
that his narcolepsy wore on his nerves. The veteran reported
that his main trauma began in 1944 after landing on an island
of the Tarawa atoll. The veteran reported that his sleep
difficulties, later diagnosed as narcolepsy, began at that
time and that he had had to fight sleep while on night guard
duty. He described the terrible stench and heat of the
island and complained of having no water fit for use. He
also described that both American and Japanese soldiers were
sharing the same trench. That comment was clarified during
the hearing where the veteran indicated that the casualties
from opposing sides were often buried side by side in one
trench. During the hearing the veteran's representative also
testified that the veteran was in combat. Transcript at 5-7.
The veteran also stated that he feared the potential of a
malfunction in the guns he was handling during his active
service. Transcript at 13.
The claims file contains a statement from a counseling
specialist at the Vet Center, dated in October 1995. The
counselor set out a history provided by the veteran, to
include an incident where some guards were digging bodies
looking for souvenirs and were wounded by a booby trap.
In August 1997, the U.S. Army & Joint Services Environmental
Support Group, redesignated as the U.S. Armed Services Center
for Research of Unit Records (USASCRUR), advised the RO that
no combat unit records were submitted by the veteran's unit
during his tour of duty. The USASCRUR provided records that
did document combat activity in the area the veteran's unit
was situated during the time of his tour on the Tarawa atoll.
Also of record is an article pertinent to the military
operations on the Tarawa atoll and documenting the deaths of
many in the takeover preceding the veteran's assignment to
that area. A review of the claims file reveals that the
National Personnel Records Center advised the RO that the
veteran's personnel record could not be reconstructed.
Based on consideration of the above the Board finds the
instant claim to be is well grounded in that the record
contains a diagnosis of PTSD, related by the July 1993 VA
examiner to the veteran's account of having seen "some
action" in service. For the purposes of determining well
groundedness, the veteran's account of having seen "some
action" in service is deemed credible. See King, supra.
ORDER
The claim of entitlement to service connection for tinnitus
is well grounded; to that extent only the claim is granted.
The claim of entitlement to service connection for PTSD is
well grounded; to that extent only the claim is granted.
REMAND
Since the veteran's claims of entitlement to service
connection for tinnitus and PTSD are well grounded, VA has a
duty to assist the veteran in the development of the claim by
obtaining relevant records which could possibly substantiate
the claims and by conducting appropriate medical inquiry.
See Peters v. Brown, 6 Vet. App. 540, 542 (1994); see 38
U.S.C.A. § 5107(a). The Court has held that the duty to
assist the veteran in obtaining and developing facts and
evidence to support his claim includes obtaining pertinent
outstanding medical records as well as adequate and
contemporary VA examinations, by a specialist when needed.
Hyder v. Derwinski, 1 Vet. App. 221 (1991); Littke v.
Derwinski, 1 Vet. App. 90 (1990).
In this case, remand to obtain medical opinions as to the
etiology of the veteran's tinnitus and with respect to
whether he meets the diagnostic criteria for service-related
PTSD is indicated.
With respect to tinnitus, although the veteran has related
continued ringing in his ears since service, no medical
professional has provided any comment as to the onset of such
problem. An etiologic opinion, based on consideration of the
veteran's in-service and post-service history, would be
probative of the claim. See the Joint Motion For Partial
Remand and to Stay Further Proceedings, page 4.
With respect to PTSD, the Joint Motion for Partial Remand
cites the evidence and testimony submitted by the veteran
relevant to his experiences on the Tarawa atoll. Although
stationed there after the major campaigns, the veteran has
argued not that he engaged in the actual combat activities,
but that he was instead subjected to aftermath in the form of
the smells of the buried dead, worsened by the heat and lack
of clean facilities. Such subjective accounts, although
anecdotal, are consistent with the veteran's service. The
July 1993 VA examiner appears only to attribute PTSD to the
veteran's having seen "some action." It is unclear whether
that examiner considered the stressful experiences actually
claimed by the veteran in arriving at such diagnosis. Thus,
a comprehensive examination to consider the sufficiency of
the veteran's noncombat stressors in meeting the diagnostic
criteria for PTSD would be probative.
Accordingly, this case is returned to the RO for the
following:
1. The RO should schedule the veteran
for VA examination by an appropriate
specialist to provide an opinion as to
whether the veteran has tinnitus that is
related to his period of active military
service, to include whether such is
related to exposure to noise coincident
with service duties. The rationale for
such opinion should be stated.
2. The veteran is advised he has the
right to submit additional evidence and
argument on the matters the Board has
remanded to the RO, to include providing
further pertinent details relative to his
stressful wartime experiences.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
3. The RO should conduct any
additionally indicated development
pertinent to PTSD, such as obtaining
records of VA or private medical
treatment and requesting further service
information from appropriate sources.
4. Thereafter, the RO should schedule
the veteran for a VA psychiatric
examination by a panel of board-certified
psychiatrists, if available. The RO must
specify for the panel that the fact of
the veteran's service on the Tarawa atoll
is verified, and that his account of
having been exposed to the smells of
buried bodies, the mental impact of his
surroundings, including the smell, the
heat and the lack of clean water, is
consistent with the facts and
circumstances of his service. The panel
should confirm or refute the diagnosis of
PTSD, and further identify the nature and
etiology of any alternate or co-existing
psychiatric diagnoses. If PTSD is
diagnosed, the panel should identify the
stressor(s) to which such diagnosis is
attributed. If PTSD is not diagnosed,
the panel is requested to provide an
explanation as to which of the diagnostic
criteria were not met.
5. After the development requested above
has been completed to the extent
possible, the RO should review the record
to ensure that such is adequate for
appellate review. The RO is advised that
where the remand orders of the Board or
the Court are not complied with, the
Board errs as a matter of law when it
fails to ensure compliance, and further
remand will be mandated. Stegall v.
West, 11 Vet. App. 268 (1998). After any
indicated corrective action has been
completed, the RO should again review the
record and re-adjudicate the veteran's
claims of entitlement to service
connection for tinnitus and PTSD. If any
benefit sought on appeal remains denied
the veteran and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
- 11 -